Sexual Harassment: Federal Courts are a Big Part of the Problem

A big part of the problem re. epidemic sexual harassment in the workplace involves the dismissive treatment that federal judges (of both sexes) have historically accorded to victims of sexual harassment. Here’s a story I wrote a while back that may curl the hair on the back of your neck. The story involves incompetence by a federal agency and a blood curdling lack of empathy by a female federal judge to women who were subjected to extreme sexual harassment and even assault when they attempted to improve their lot in life by becoming truck drivers. PGB

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed by her two “Lead Trainers.”

Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies, $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision is brutally unsympathetic to the EEOC and the 255 female trainees and drivers who alleged sex discrimination and harassment against CRST. She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST.

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.

Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often” and “You got big tits for your size, etc. . . “ She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain. “[I] was told that I could not get off the truck until the next day.” she said.

The other “Lead Trainer” allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005 “in order to get a passing grade.”

Starke is described as a German who struggles with English. She and her husband subsequently hired a lawyer and filed for bankruptcy. They failed to mention the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel – a doctrine that is meant to protect the integrity of the court. Judge Reade granted the motion.

In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST.

In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

In other cases, Judge Reade said CRST did not have legal (as opposed to real) notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of supervisor in that they could not fire the trainees.

Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases – which appears to be a brand new requirement that could severely limit the EEOC in the future. Judge Reade conceded that dismissal was a “severe” sanction for these complainants.

The EEOC appealed Judge Reade’s dismissal of the case to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.

The appellate court generally agreed female complainants claims that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim. (It was unclear exactly how many times a worker must be propositioned for sex by a superior to qualify as being harassed.)

However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell, who spent seven days on the road with a male co-driver who asked her on three to five occasions to drive naked; refused her request to stop at a truck stop so she could go to the bathroom, ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.” Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving his urine receptacles about the truck’s cab for her to clean up.

The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court. That brought Ms. Starke case back into the litigation.

After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke.

The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.

Which left Ms. Jones as the sole surviving plaintiff.

Even though the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

The final award to CRST is actually larger than the earlier award because Judge Reade included fees and costs expended by CRST related to the appeal.

Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.